David Stratas Federal Court of Appeal

David Stratas Federal Court of Appeal Factums

● Does oral argument matter at trial? On appeal? ● Oral argument trends ● Hearings in writing ● The growth of Ministerial, administrative, and regulatory hearings Opening considerations

● How we use factums: before, during and after hearing ● How we use other material, like evdientiary records Opening considerations

● Your generational advantage ● Factum instruction: relationship to other forms of legal writing, e.g. written submissions, regulatory submissions, reporting letters and emails, office communications. Opening considerations

● The portability of written work ● Office prejudices: “good writers are smart” ● Reputation ● The evolution of factums: pictures, sound files, hyperlinks Opening considerations

Before writing… ● What are the facts? Squeeze the record dry ● What is the law? Research and assess fully ● Can’t make a good wall with lousy bricks Opening considerations

● But leave lots of time for writing ● The relationship between writing and research/factual appreciation ● The power of writing to reveal strengths and weaknesses Opening considerations

● The relevance of procedural rules and practice directions ● Formatting; the major sections of a factum; how to serve; filing times Opening considerations

● The “fact” section and the “law” section – are we limited to facts in the former and law in the latter? ● The role of a good introduction Opening considerations

● Neglected parts of the factum: remedies and the schedules ● Time-consuming things: start early Opening considerations

● all relevant parts of the evidentiary record are accurately and fairly presented ● all applicable law is found, synthesized and reported accurately Intellectual persuasion

● the law is applied simply, logically and fairly to the evidentiary record ● the right issues are focused upon; time is not wasted on fringe or irrelevant issues Intellectual persuasion

● the “moral highground” or “colour” of a case ● relevant to discretions ● not always relevant: “policy fools”and “Judge Judy litigants” Emotional persuasion

● usually achieved through skilful exposition of facts: selecting and arranging the facts in a clinical way rather than using adjectives or broad-brushing through assertion Emotional persuasion

● the critical or doubting judge ● tone: acquaint the judges with the problem and then help them find an easy, practical solution ● tone: riding “shotgun” with the judge Credibility persuasion

● a calm, welcoming dialogue that seduces judges in to the submission, not a hectoring, preachy diatribe that repels all ● don’t over-emphasize the strengths and de-emphasize the case you have to answer Credibility persuasion

●Don’t frighten. Offer arguments that have few implications; don’t ask judges to hit someone’s credibility unless you have to Credibility persuasion

● high-quality presentation (ease of read), brevity (careful and fair selection of facts and law), easy structure, candour, proper formatting, accurate and ample citations, overall accuracy ● clear, direct and brief prose Credibility persuasion

● Obligations to your client ● Obligations to your adversary ● Obligations to the court Ethics, professionalism and civility

David Stratas Federal Court of Appeal